Surendra Bhakta vs The Union Of India And Ors
2022 Latest Caselaw 4674 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.10336 of 2018
     ======================================================

Surendra Bhakta, S/o Late Indradeo Bhakta, Ex- Pharmacist/ C.I.S.F. Bi, 851010087, resident of Village- Kuttubpur, P.S.- Bidupur, District- Vaishali.

... ... Petitioner/s Versus

1. The Union of India, New Delhi through Union Home Secretary, Govt. of India, North Block, New Delhi.

2. Union Public Service Commission, Dholpur House, Sahjahan Road, New Delhi through the Secretary, Ministry of Home Affairs, North Block, New Delhi.

3. The Directorate General, C.I.S.F., 13 CGO Complex, Lodhi Road, New Delhi.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Hemant Kumar Karan, Advocate. For the Respondent/s : Mr. Rakesh Kumar Sinha, C.G.C. ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE PURNENDU SINGH) Date : 01-12-2022 Heard Mr. Hemant Kumar Karn, learned counsel

for the petitioner and Mr. Rakesh Kumar Sinha, learned counsel

for the Union of India.

2. In the instant writ petition, petitioner has assailed

the order dated 15.11.2017 passed by the learned Central

Administrative Tribunal, Patna Bench, Patna in O.A. No.

050/00613/2014 under Section 19 of the Administrative Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

Tribunal Act, 1985 whereby and whereunder petitioner has

challenged the order dated 23.04.2014 whereby the petitioner

was awarded punishment of 'withholding of 25% of the

monthly pension otherwise admissible to the petitioner for a

period of five years' in a disciplinary proceeding held pursuant

to the Charge Memorandum No. 5240 dated 04.12.2012 and

further Order No. 11014/42/L&R/2013/1108 dated 23.04.2014

passed under the signature of Dy. Inspector General/Pers.,

Directorate General, Central Industrial Security Force, New

Delhi as contained in Annexure - P/6 imposing punishment

upon the petitioner of 'withholding of 25% of the monthly

pension otherwise admissible to the petitioner for a period of

five years'.

3. The petitioner was appointed on 15.04.1985. He

had reported in CISF 8th RB Jaipur from CISF 2nd RB Ranchi,

and was taken on strength on 30.11.2009. The petitioner retired

on attaining age of superannuation w.e.f. 28.02.2013 while he

was posted at CISF 8th RB Jaipur.

4. The examination was conducted for recruitment

of SI/Exe and ASI/Exe at CISF 8 th RB Jaipur from 21.08.2012

to 12.09.2012. Medical Examination was conducted for selected

candidates from 22.08.2012 to 13.09.2012. For the recruitment Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

of SI/Exe and ASI/Exe at CISF 8 th RB Jaipur, quotations for

conducting medical examination of the candidates were invited

from outside diagnostic centers for minimizing the expenditure.

On 14.09.2012, a complaint letter addressed to the SP, CBI,

Jaipur was made by one of the candidates, Shubhakaran Singh

alleging therein that bribe of Rs. 10,000/- was demanded from

him. On the basis of said allegation, the matter was investigated

by the Central Bureau of Investigation. On 14.09.2012, CBI

conducted raid of the premises of Dr. B. L. Roy and seized

Rs.1,00,500/-. In course of further investigation and on the basis

of statement of the accused persons arrested by the CBI, name

of the petitioner was disclosed that he was also involved in such

malpractice which was ongoing in the medical examination test.

Statement of the petitioner was recorded on 16.09.2012 wherein

he accepted that he had introduced Dr. B. L. Roy with Shri

Shashikant Bharadwaj in Jalmahal on 07.09.2012. Thereafter,

Charge Memorandum No. 5240 dated 04.12.2012 under Rule 14

of the CSS (CCA) Rules, 1965 was served to the petitioner

while he was posted on the post of Pharmacist at Jaipur and he

was directed to submit his representation within a period of ten

days from receiving of the memorandum.

5. The Charge Memorandum No. 5240 dated Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

04.12.2012 consisted of two charges as under:

vkjksi & 01: dsvkSlqc 8oh vkjf{kr okfguh t;iqj esa fnukad 21.08.12 ls 12.09.12 rd dsUnzh; l"kL= iqfyl cy ds fy, [email protected] dk;Z vkSj dsvkSlqc ds fy;s [email protected];Z in ds fy, dh x;h HkrhZ esa p;fur lnL;ksa dh fnukad 22.08.12 ls 13.09.12 rd fpfdRlk ijh{k.k djk;k x;kA la[;k 851010087 QkekZflLV lqjsUnz HkDrk us ,d vuq"kkflr cy esa gksrs gq, Hkh fpfdRlk "kk[kkvksa ls fy, x;s dksVs"ku fooj.k dk mn+Hksnu dj Jh MkbXuksflLV lsUVj vkesj dks ykHk igqWapkus ds bjkns ls crk;k ftlls mldk dksVs"ku ek= ,d :i;k de fn;k x;k ,oa HkrhZ esa p;fur lnL;ksa dks fpfdRlk ijh{k.k esa ikl djkokus ds fy, xyr bjkns ls Hkkj}kt esfMdYl ds lapkyd "kkf"kdkUr Hkkj}kt dk Mk0 ch0 ,y0 jk; ls lEidZ djk;k vkSj mlds i"pkr lhchvkbZ us Mk0 ch0 ,y0 jk; dks 8oh vkjf{kr okfguh dsvkSlqc t;iqj ifjlj ls fxjQrkj fd;k ftlls cy dh Nfo /kqfey gqbZ vkSj vke turk esa cy ds izfr xyr lUns"k igqWapkA vr% ,d vuq"kkflr cy esa gksus ds ukrs la[;k 851010087 QkekZflLV lqjsUnz HkDrk dk mDr d`R; mlds drZO; ds izfr ?kksj ykijokgh vkSj xSj ftEesnkjkuk n"kkZrk gSA vr% vkjksi gSA

vkjksi & 02: dsvkSlqc 8oh vkjf{kr okfguh t;iqj ds la[;k 851010087 QkekZflLV lqjsUnz HkDrk dks mlds lsok nLrkost ds vuqlkj iwoZ esa Hkh 02 NksVh ltkvksa ls nf.Mr fd;k x;k gS ftuesa ls ,d ltk ofj'B vf/kdkfj;ksa dks xyr lwpuk nsdj xqejkg djus ls lacaf/kr gSA fQj Hkh og vius dk;Zdyki esa lq/kkj ykus esa foQy jgkA ,d vuq"kklfr cy esa gksus ds ukrs la[;k 851010087 QkekZflLV lqjsUnz HkDrk dk mlds dk;Zdyki esa lq/kkj ugha ykuk mlds drZO; ds izfr ykijokgh ,oa ?kksj vuq"kklughurk ,oa ofj'B vf/kdkfj;ksa } kjk fn;s x;s oS/k vkns"kksa dh vogsyuk dk |ksrd gSA vr % vkjksi gSA

A statement of Imputations of misconduct or misbehavior in support of the Articles of Charge, a list of documents by which and a list of witnesses by whom the Articles of charge framed against the CO where proposed to be sustained were also enclosed with the Memorandum dated 04.12.2012 as Annexure II, III and IV respectively. In response to the Charge sheet dated 04.12.2012, the CO vide his letter Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

dated 05.12.2012 denied the charges. Thereafter, the case was referred for oral inquiry and an I.O. and a P.O. were appointed vide orders dated 26.12.2012. the I.O. concluded his report dated 13.02.2013 by holding charges in Article-1 and 2 as proved. The DA agreed with the findings of the IO and forwarded a copy of the IO's report to the CO vide Letter dated 14.02.2013 for submission of his representation, if any. The CO submitted his representation vide letter dated 28.02.2013. the CO retired from government service on superannuation on 28.02.2013 and therefore, the proceedings are deemed to have continued under Rule 9 of CCS (Pension) Rules, 1972. After considering the charge sheet, IO's report, representation of the CO thereon and all other relevant aspects of the case, the DA tentatively decided to impose a penalty of suitable cut in the pensionary benefits on the CO and sent the case records to the Commission for their advice.

6. On 28.02.2013, the petitioner submitted his

representation against the inquiry report. The inquiring officer

found two article of charges proved against the petitioner. The

petitioner had attained the age of superannuation on 28.02.2013

itself and the same was communicated vide Commandant CISF

8th Res Bn Jaipur SO Part-I No. 23/2013 dated 01.03.2013.

Thereafter, UPSC was consulted. The UPSC communicated its

advice on 23.10.2013 to impose penalty of 'withholding of 25%

of the monthly pension for five years. The Dy. Inspector

General (Pers.), Directorate General, Central Industrial Security

Force, New Delhi vide Letter dated 24.12.2013 directed the

petitioner to make representation, if any, to the Disciplinary

Authority within 15 days. On 13.01.2014, the petitioner Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

submitted his representation against the inquiry report and the

advice of the UPSC.

7. In the present case, the Disciplinary Authority

having followed the procedure regarding issue of show cause

notice and compliance with the principles of natural justice after

giving ample opportunity to the petitioner, concluded that the

charges levelled in Article '1' stand fully proved. The charge

levelled in Article '2' also came to be proved on the basis of

evidence adduced by Shri Binod Kumar Patel, In-charge,

Documents Section,who accepted the charge of imposition of

two minor penalties on the Petitioner, including one on account

of misleading of senior officers as proved. In terms of Rule

14(3)(i) of CCS (CCA) Rules, 1965, the Inquiring Officer came

to the conclusion that charge of imposition of two minor

penalties on the petitioner on account of misleading senior

officers is proved. The Disciplinary Authority further framed

charge of imposition of two previous penalties on the petitioner

and held that the petitioner's past service is not unblemished.

8. Against the punishment order dated 23.04.2014,

the petitioner submitted Mercy Petition before the President of

India. The same was rejected and communicated to the

petitioner vide Letter dated 04.06.2014.

Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

9. Learned counsel appearing on behalf of the

petitioner submitted that the charges framed against the

petitioner was not in conformity with Rule 14(3)(i) of the CCS

(CCA) Rules, 1965 inasmuch as the charges drawn against the

petitioner are vague without there being any specific finding on

each allegation made against the petitioner. Learned counsel

submitted that there may be negligence and lapses in performing

duty but the same would not constitute misconduct unless

consequences are directly attributable to negligence. In absence

of any motive as well as mens rea, the charges levelled against

the petitioner loose its force. It is further submitted that

petitioner has not caused any pecuniary loss and as such the

allegation against the petitioner is not sustainable. The entire

disciplinary proceeding initiated against the petitioner is

erroneous and the penalty of 'withholding of 25% of the

monthly pension of the petitioner for five years' is not

sustainable. On these grounds, he submits that the order passed

by learned Central Administrative Tribunal, Patna Bench, Patna

is not sustainable in the eye of law. The judgment relied by the

learned CAT in the case of Management of State Bank of

India Vs. Smita Sharad Deshmukh and Anr., reported in

(2017) 1 SCC (L&S) 780 is not applicable to the facts of the Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

present case.

10. Per contra, the learned counsel appearing on

behalf of the respondent submitted that the petitioner disclosed

the details / rates of quotation received from other medical

centres to Shri Sanjany Chotwani, owner of Shri Diagnostic

Centre, Amer with intention to benefit him. He also played an

active role in arranging meeting between Dr. B. L. Roy, member

of Medical Board with an outsider Shri Shashikant Bharadwaj at

a location outside the Batalian Complex with malafide intention.

The disciplinary proceeding was conducted in accordance with

the provisions of CCS (CCA) Rules, 1965. After careful

consideration of records of the case, examination of statement of

witnesses, finding of the inquiry officer, final representation

submitted by the petitioner and advice tendered by the UPSC,

the petitioner was awarded penalty of 'withholding of 25%

monthly pension otherwise admissible to the petitioner for a

period of five years' vide Order No. 1108 dated 23.04.2014. The

learned Central Administrative Tribunal while deciding O.A.

No. 613 of 2014 has considered the above facts and held that the

departmental inquiry was duly conducted, the charges levelled

against the petitioner were amply proved and the petitioner was

rightly awarded with the aforesaid penalty vide order dated Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

23.04.2014 and dismissed the O.A. vide judgement and order

dated 15.11.2017. The petitioner has not been able to bring on

record that the order of the Tribunal is perverse and requires any

interference.

11. Heard the parties.

12. It is well-settled principle that the High Court

will not re-appreciate the evidence but will only see whether

there is evidence in support of the impugned conclusion. The

court has to take the evidence as it stands and its only limited

jurisdiction is to examine, whether on the evidence, the

conclusion could have been arrived at.

13. The point that arises for our consideration is

whether in the given facts of the case, the learned Tribunal

ought to have interfered with the punishment imposed on the

petitioner by the Disciplinary Authority and by not doing so it

has committed error of law. The above proposition of law has

been reiterated many a times by the Apex Court and in this

regard it would be appropriate to refer law laid in the case of B.

C. Chaturvedi v. Union of India and Others reported in 1995

SCC (6) 749 in Paragraph Nos. 12, 13 and 18 of the said

judgment which are reproduced as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v.

H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

record or based on no evidence at all, a writ of certiorari could be issued.

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof."

14. Principle in B. C. Chaturvedi (Supra) has

been reiterated by the Hon'ble Supreme Court in the case of

Union of India and Others Vs. Subrata Nath reported in 2022

LiveLaw (SC) 998 may be referred which reads as follows:

"15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental enquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulation have not been adhered to or there are malafides attributable to the disciplinary authority then the courts can certainly interfere."

15. Undisputed facts of the case are that

recruitment for the post of SI/Exe was held at CISF 8 th RB

Jaipur between 22.08.2012 to 23.09.2012 and medical Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

examination test of selected candidates was conducted from

22.08.2012 to 13.09.2012, by calling quotation from outside

Diagnostic Centres so as to minimize expenditure. The

petitioner disclosed the details / rates of quotation received from

other medical centres to Shri Sanjay Chotwani, owner of the

Shri Diagnostic Centre, who used this information and quoted

Rs.1/- less than the rate quoted by the Government SMS

Hospital as a result of which his quotation was passed. He also

played an active role in arranging meeting between Dr. B. L.

Roy, member of the medical board with an outsider Shri

Shashikant Bhardwaj at a location outside the Batalian

Complex. In course of inquiry, the evidence of Shri Sanjay

Chotwani who had quoted Rs.1/- less than the rate quoted by the

Government SMS hospital was recorded who accepted that the

petitioner has divulged the rate of Government SMS Hospital to

him. Statement of Dr. B. L. Roy and Shri Shashikant Bhardwaj

was also recorded and they have also supported the fact that the

petitioner had arranged a meeting between them at a location

outside the Batalian Complex to favour Shri Diagnostic Centre

in the process of tender. The CBI had conducted the raid and

arrested Dr. B. L. Roy and recovered Rs.1,00,500/-.

16. This Court in course of hearing of the case on Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

14.11.2022 had passed following order:-

"Learned counsel for the respondents is hereby directed to secure the records. He is also hereby directed to get instruction as to whether was there any material information linking the petitioner with Shri Diagnostic so as to uphold the alleged charge and consequential orders.

Relist this matter on 28.11.2022."

17. The records of the case was produced today in

the Court and on perusal of the statement of Sanjay Chotwani,

owner of Shri Diagnostic Centre, Amer, shows that he had

quoted Rs.1/- less than the government rate on the information

provided by the petitioner. The statement of Sanjay Chotwani

recorded on 17.01.2013 has been taken note of by the

Disciplinary Authority. In course of inquiry, statement of

Shashikant Bhardwaj was also recorded on 21.01.2013 in the

presence of the Disciplinary Authority who had also not denied

that he is not known to Dr. B. L. Roy but has denied the fact that

he has not collected any money from Dr. B. L. Roy rather he has

been trapped by one candidate with the help of CBI. The

petitioner has facilitated the meeting between Dr. B. L. Roy and

Shri Shashikant Bhardwaj. The statement of Dr. B. L. Roy

recorded on 31.01.2003 also shows that the petitioner Surendra

Bhakta had introduced him with Shashikant Bhardwaj but he

denied that whatever money was recovered from his room was

his own money. The contention of the petitioner that the Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

petitioner was not provided with ample opportunity and the

inquiry was not conducted in accordance with law is not

sustainable as it would appear from the above facts. The

Disciplinary Authority after receiving advice of the UPSC and

considering the reply of the petitioner awarded punishment of

'withholding of 25% of monthly pension otherwise admissible

to the petitioner for a period of five years' and the same requires

no interference.

18. In the facts of the case, we do not find any

perversity or in any manner miscarriage of justice. We have

noted above that finding of the disciplinary authority had met

with the provisions of statutory Rules and it cannot be held that

departmental inquiry was vitiated on account of violation of

Rules of natural justice or the inquiry has been conducted in

gross violation of statutory Rules. We find ourselves in

complete agreement with the finding and conclusion arrived by

the disciplinary authority. In our opinion, the penalty of

'withholding of 25% of the monthly pension otherwise

admissible to the petitioner for a period of five years' imposed

upon the petitioner requires no interference of this Court.

19. As a result, the writ petition preferred by the

petitioner arising out of O.A. No. 050/00613/2014 is dismissed, Patna High Court CWJC No.10336 of 2018 dt.01-12-2022

while leaving the parties to bear their own expenses.

(P. B. Bajanthri, J)

( Purnendu Singh, J)

mantreshwar/-

AFR/NAFR                AFR
CAV DATE                N.A.
Uploading Date          13.12.2022
Transmission Date       N.A.